EXHIBIT 10.16
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This amended and restated employment agreement (the "Agreement") is made
and entered into effective as of October 1, 2007 (the "Effective Date"), by and
between Xxxx XxXxxx ("Employee") and Notify Technology Corporation (the
"Company").
RECITALS
A. The Company desires to retain the services of Employee, and Employee
desires to be employed by the Company, on the terms and conditions set forth in
this Agreement.
B. Certain capitalized terms used in the Agreement are defined in Section
8 below.
In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of Employee by the Company, the
parties agree as follows:
1. Duties and Scope of Employment.
(a) Position. The Company shall employ Employee in the position of
Chairman, President and Chief Executive Officer, with such duties,
responsibilities and compensation as in effect as of the Effective Date;
provided, however, that the Company's Board of Directors (the "Board") shall
have the right, prior to the occurrence of a Change of Control, to revise such
responsibilities and compensation from time to time as the Board may deem
necessary of appropriate.
(b) Obligations. Employee shall devote his full business efforts and
time to the Company and its subsidiaries. The foregoing, however, shall not
preclude Employee from engaging in such activities and services as do not
interfere or conflict with his responsibilities to the Company.
2. At-Will Employment. The Company and Employee acknowledge Employee's
employment is and shall continue to be at-will, as defined under applicable law.
If Employee's employment terminates for any reason, Employee shall not be
entitled to any payments, benefits, damages, awards or compensation other than
as provided by this Agreement, or as may otherwise be available in accordance
with the Company's established employee plans and practices or other agreements
with the Company at the time of termination.
EXHIBIT 10.16
3. Compensation and Benefits.
(a) Base Compensation. The Company shall pay Employee as
compensation for services a base salary at an annualized rate of $255,000. Such
salary shall be reviewed at least annually and shall be increased from time to
time subject to accomplishment of such performance and contribution goals and
objectives as may be established from time to time by the Board. Such salary
shall be paid periodically in accordance with normal Company payroll. The annual
compensation specified in this Section 3(a), together with any increases in such
compensation that the Board may grant from time to time, is referred to in this
Agreement as "Base Compensation".
(b) Bonus. Beginning with the Company's current fiscal year and for
each fiscal year thereafter during the term of this Agreement, Employee shall be
eligible to receive an annual bonus (the "Bonus") based upon targets approved by
the Board. The Bonus payable hereunder shall be payable in accordance with the
Company's normal practices and policies.
(c) Employee Benefits. Employee shall be eligible to participate in
the employee benefit plans and employee compensation programs maintained by the
Company applicable to other key employees of the Company, including (without
limitation) life, disability, health, accident and other insurance programs, and
paid vacations, subject in each case to the generally applicable terms and
conditions of the plan or program in question and to the determination of any
committee administering such plan or program. In addition, all dental expenses
by Employee and Employee's family shall be reimbursed to Employee by the
Company. Employee shall be eligible for thirty (30) days of Personal Time Off
(PTO) per year, which shall accrue monthly. In addition, all expenses regarding
state and federal income tax preparation shall be reimbursed to Employee.
(d) Expenses. The Company will pay or reimburse Employee for
reasonable travel, entertainment or other expenses incurred by Employee in the
furtherance of or in connection with the performance of Employee's duties
hereunder in accordance with the Company's established policies. Employee shall
furnish the Company with the evidence of such expenses within a reasonable
period of time from the date that they were incurred.
4. Severance Benefits.
(a) Termination Following A Change of Control. If Employee's
employment with the Company terminates at any time within twenty-four (24)
months after a Change of Control, then, subject to Section 5, Employee shall be
entitled to receive severance benefits as follows:
(i) Involuntary Termination. If Employee's employment
terminates as a result of an Involuntary Termination (as defined in Section 8)
other than for Cause (as defined in Section 8), then Employee shall be entitled
to receive (i) a continuation of Employee's Base Compensation for a period equal
to eighteen (18) months and (ii) the maximum amount of Employee's Bonus for the
fiscal year in which such Involuntary Termination occurs that could have been
received by Employee had Employee satisfied all conditions necessary to earn
such maximum amount of the Bonus during the remainder of such fiscal year.
EXHIBIT 10.16
(ii) Voluntary Resignation; Termination for Cause. If Employee
voluntarily terminates employment with the Company, other than as a result of an
Involuntary Termination, or if Employee is terminated for Cause, then Employee
shall not be entitled to receive severance or other benefits except for those
(if any) as may then be established under the Company's then existing severance
and benefits plans and policies at the time of such termination.
(iii) Disability: Death. If the Company terminates Employee's
employment as a result of Employee's Disability, or such Employee's employment
is terminated due to the death of Employee, then, except as provided below,
Employee shall not be entitled to receive severance or other benefits except
those (if any) as may then be established under the Company's then existing
severance and benefits plans and policies at the time of such Disability.
Notwithstanding the foregoing, if Employee's employment is terminated due to the
death of Employee, then Employee shall be entitled to receive a one-time cash
payment equal to (i) the aggregate amount of Employee's Base Compensation for a
period equal to twelve (12) months minus (ii) the aggregate amount that Employee
is entitled to receive under the Company-paid life insurance policy.
(b) Termination Apart from Change of Control. If, during the term of
this Agreement, Employee's employment with the Company terminates, either prior
to the occurrence of a Change of Control or after the twenty-four (24) month
period following a Change of Control, then Employee shall be entitled to receive
severance benefits as follows:
(i) Involuntary Termination. If Employee's employment
terminates as a result of Involuntary Termination other than for Cause, then
Employee shall be entitled to receive (i) a continuation of Employee's Base
Compensation for a period equal to twelve (12) months and (ii) the maximum
amount of Employee's Bonus for the fiscal year in which such Involuntary
Termination occurs that could have been received by Employee had Employee
satisfied all conditions necessary to earn such maximum amount of the Bonus
during the remainder of such fiscal year.
(ii) Voluntary Resignation; Termination for Cause. If Employee
voluntarily terminates employment with the Company, other than as a result of an
Involuntary Termination, or if Employee is terminated for Cause, then Employee
shall not be entitled to receive severance or other benefits except for those
(if any) as may then be established under the Company's then existing severance
and benefits plans and policies at the time of such termination.
(iii) Disability; Death. If the Company terminates Employee's
employment as a result of Employee's Disability, or such Employee's employment
is terminated due to the death of Employee, then, except as provided below,
Employee shall not be entitled to receive severance or other benefits except
those (if any) as may then be established under the Company's then existing
severance and benefits plans and policies at the time of such Disability.
Notwithstanding the foregoing, if Employee's employment is terminated due to the
death of Employee, then Employee shall be entitled to receive a one-time cash
payment equal to (i) the aggregate amount of Employee's Base Compensation for a
period equal to twelve (12) months minus (ii) the aggregate amount that Employee
is entitled to receive under the Company-paid life insurance policy.
EXHIBIT 10.16
(c) Benefits. In the event Employee is entitled to severance benefits
pursuant to Section 4(a)(i) or Section 4(b)(i), then in addition to such
severance benefits, Employee shall receive (i) 100% Company-paid dental and life
insurance coverage as provided to Employee, and Employee's dependents, if
applicable, immediately prior to Employee's termination, (ii) reimbursement from
the Company for all premium payments paid by Employee under COBRA ("COBRA
Payments") for continuing health insurance coverage as provided to Employee, and
Employee's dependents, if applicable, immediately prior to Employee's
termination (collectively, the "Company-Paid Coverage"), provided, however, at
the election of Employee and in lieu of such reimbursements from the Company for
COBRA Payments, Employee may receive a one-time cash payment equal to the total
amount of the COBRA Payments Employee would be required to make for eighteen
(18) months following such termination for continuing health insurance coverage
at the same coverage level as provided to Employee, and Employee's dependents,
if applicable, immediately prior to Employee's termination, and (iii)
outplacement services for a period of up to six (6) months following Employee's
termination; provided, however, that the maximum amount of fees and expenses
that the Company shall be obligated to pay for such services shall be $9,000.
Company-Paid Coverage shall continue until the earlier of (i) eighteen (18)
months following termination in the case of a termination described in Section
4(a)(i) or Section 4(b)(i), or (ii) the date Employee becomes covered under
another employer's group health, dental or life insurance plan (to the extent
covered under such plans). In addition, without regard to the reason for
termination of Employee's employment: (i) the Company shall pay Employee any
unpaid salary and Bonus due for periods prior to the Termination Date; (ii) the
Company shall pay Employee all of Employee's accrued and unused PTO through the
Termination Date; and (iii) following submission of proper expense reports by
Employee, the Company shall reimburse Employee for all expenses reasonably and
necessarily incurred by Employee in connection with the business of the Company
prior to termination. These payments shall be made promptly upon termination and
within the period of time mandated by law.
(d) Restricted Stock; Options. In the event Employee is entitled to
severance benefits pursuant to Section 4(a)(i) or Section 4(b)(1) of this
Agreement, then (i) all Company stock purchased by Employee subject to a
repurchase right in favor of the Company shall vest and any such repurchase
right shall lapse, and (ii) all options to purchase capital stock of the Company
held by Employee at the Termination Date (the "Options") shall fully vest upon
the Termination Date and Employee shall have the right to exercise the Options
as to all of the shares of capital stock underlying the Options, including
shares of capital stock which would not otherwise be vested or exercisable, in
accordance with the terms of the applicable option agreement relating to each of
the Options.
EXHIBIT 10.16
5. Limitations on Payments. In the event that the severance and other
benefits provided for in this Agreement or otherwise payable to Employee (i)
constitute "parachute payments" with in the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and (ii) but for this
Section, would be subject to the excise tax imposed by Section 4999 of the Code,
then Employee's severance benefits under Section 4(a)(i), as applicable, shall
be payable to the extent such payment, after taking into account the applicable
federal, state and local income taxes and the excise tax imposed by Section
4999, results in the receipt by Employee on an after-tax basis, of the greatest
amount of severance benefits under Section 4(a)(i), notwithstanding that all or
some portion of such severance benefits may be taxable under Section 4999 of the
Code. Unless the Company and Employee otherwise agree in writing, any
determination required under this Section shall be made in writing by the
Company's independent public accountants (the "Accountant"), whose determination
shall be conclusive and binding upon Employee and the Company for all purposes.
For the purposes of making calculation required by this Section 5, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may relay on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and Employee shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountant may reasonably
incur in connection with any calculations contemplated by this Section.
6. Confidential Information.
(a) Company Information. Employee agrees at all times during the
term of Employee's employment and thereafter, to hold in strictest confidence,
and not to use, except for the benefit of the Company, or to disclose to any
person, firm or corporation without written authorization of the Board, any
Confidential Information of the Company. Employee understands that "Confidential
Information" means any Company proprietary information, trade secrets or
know-how, including, but not limited to, market research, product plans,
products, services, customer lists and customers (including, but not limited to,
customers of the Company on whom Employee will call), markets, developments,
marketing, finances or other business information disclosed to Employee by the
Company either directly or indirectly in writing, orally or by drawings or
observation of parts or equipment. Employee further understands that
Confidential Information does not include any of the foregoing items which is
based on either Employee's prior knowledge or the experience of Employee or has
become publicly known and made generally available through no wrongful act of
Employee or of others who were under confidentiality obligations as to the item
or items involved.
(b) Third Party Information. Employee recognizes that the Company
has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. Employee agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
Employee's work for the Company consistent with the Company's agreement with
such third party.
EXHIBIT 10.16
7. Covenant Not to Solicit.
(a) Until one year after termination of Employee's employment with
the Company for any reason, Employee agrees that he shall not solicit, induce,
attempt to hire, recruit, encourage, take away, or hire any employee of the
Company or cause an employee to leave his or her employment either for Employee
or for any other entity or person.
(b) Employee represents that he (i) is familiar with the foregoing
covenant not to solicit, and (ii) is fully aware of his obligations hereunder,
including, without limitation, the reasonableness of the length of time and
scope of this covenant.
8. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) Change of Control. "Change of Control" shall mean the occurrence
of any of the following events occurring on or after the date hereof:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
30% or more of the total voting power represented by the Company's then
outstanding voting securities; provided, however, that an initial public
offering of the Company's Common Stock shall not constitute a Change of Control;
or
(ii) A change in the composition of the Board occurring within a
two-year period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors who either (A)
are directors of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but shall not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or
(iii) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such a merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets.
EXHIBIT 10.16
(b) Involuntary Termination. "Involuntary Termination" shall mean,
without Employee's express written consent, (i) a significant reduction of
Employee's duties, position or responsibilities, or the removal of Employee from
such position and responsibilities, unless Employee is provided with a
comparable position (i.e., a position of equal or greater organizational level,
duties, authority, compensation and status), provided, however, that Employee's
acceptance of any other position with the Company, or any successor, in lieu of
Employee's current position with the Company shall not be deemed to be a waiver
of Employee's rights under this Agreement and Employee shall continue to be
entitled to all rights under this Agreement as long as Employee remains employed
by the Company, or any successor; (ii) a substantial reduction, without good
business reasons, of the facilities and perquisites (including office space and
location) available to Employee immediately prior to such reduction; (iii) a
reduction by the Company in the Base Compensation of Employee as in effect
immediately prior to such reduction, other than a reduction which is part of and
generally consistent with a general reduction of comparable employee salaries;
(iv) a material reduction by the Company in the kind or level of employee
benefits to which Employee is entitled immediately prior to such reduction with
the result that Employee's overall benefits package is significantly reduced,
other than a reduction which is part of and generally consistent with a general
reduction of comparable employee benefit packages; (v) the relocation of
Employee to a facility or a location more than 25 miles from Employee's then
present location, without Employee's express written consent; (vi) any purported
termination of Employee by the Company which is not affected for death,
Disability or Cause; or (vii) the failure of the Company to obtain the
assumption of this agreement by any successors contemplated in Section 9 below.
(c) Cause. "Cause" shall mean (i) any act of personal dishonesty
taken by Employee in connection with his responsibilities as an employee and
intended to result in substantial personal enrichment of Employee, (ii) the
conviction of a felony which the Board reasonably believes had or will have a
material detrimental effect on the Company's reputation or business, and (iii) a
willful act by Employee which constitutes gross misconduct and which is
injurious to the Company.
(d) Disability. "Disability" shall mean that Employee has been
unable to perform his duties under this Agreement as the result of his
incapacity due to physical or mental illness, and such inability, at least 26
weeks after its commencement, is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to Employee or
Employee's legal representative (such Agreement as to acceptability not to be
unreasonably withheld). Termination resulting from Disability may only be
effected after at least 30 days' written by the Company of its intention to
terminate Employee's employment. In the event that Employee resumes the
performance of substantially all of his duties hereunder before the termination
of his employment becomes effective, the notice of intent to terminate shall
automatically be deemed to have been revoked.
EXHIBIT 10.16
(e) Termination Date. "Termination Date" shall mean (i) if this
Agreement is terminated by the Company for Disability, thirty (30) days after
notice of termination is given to Employee (provided that Employee shall not
have returned to the performance of Employee's duties on a full-time basis
during such thirty (30) day period), (ii) if Employee's employment is terminated
by the Company for any other reason, the date on which a notice of termination
is given or such other date specified in the notice of termination, or (iii) if
the Agreement is terminated by Employee, the date on which Employee delivers the
notice of termination to the Company.
9. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligations
in the absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this Section
or which becomes bound by the terms of this Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement and all
rights of Employee hereunder shall inure to the benefit of, and be enforceable
by, Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. Returning Company Documents. Employee agrees that, at the time of
leaving the employ of the Company, Employee will deliver to the Company (and
will not keep in Employee's possession, recreate or deliver to anyone else) any
and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by Employee
pursuant to Employee's employment with the Company or otherwise belonging to the
Company, its successors or assigns.
11. Notice.
(a) General. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of Employee, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be delivered to the attention of its Secretary.
EXHIBIT 10.16
(b) Notice of Termination. Any termination by the Company for Cause
or by Employee as a result of a voluntary resignation or an Involuntary
Termination shall be communicated by a notice of termination to the other party
hereto given in accordance with this Section. Such notice shall indicate, the
specific termination provision in this Agreement relied upon, shall be set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and shall specify the termination
date (which shall be not more than 30 days after the giving of such notice). The
failure by Employee to include in the notice any fact or circumstance which
contributes to a showing of Involuntary Termination shall not waive any right of
Employee hereunder or preclude Employee from asserting such fact or circumstance
in enforcing his right hereunder.
12. Mediation; Arbitration.
(a) Mediation. Employee agrees that any dispute or controversy
arising out of, relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach or termination
thereof, shall first be submitted to mediation. The mediation shall be conducted
within 45 days of either party notifying the other party of a dispute or
controversy regarding this Agreement or Employee's employment relationship with
the Company. Unless otherwise provided for by law, the Company and Employee
shall each pay half the costs and expenses of the mediation.
(b) Arbitration. In the event mediation pursuant to subsection (a)
above fails, Employee agrees that any dispute or controversy arising out of,
relating to, or in connection with this Agreement, or the interpretation,
validity, construction, or breach thereof, shall be finally settled by binding
arbitration to be held in San Jose, California under the National Rules for the
Resolution of Employment Disputes supplemented by the Supplemental Procedures
for Large Complex Disputes, of the American Arbitration Association as then in
effect (the "Rules"). The arbitrator may grant injunctions or other equitable
relief in such dispute or controversy. The decision of the arbitrator shall be
final, conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction.
(c) The arbitrator(s) shall apply California law to the merits of
any dispute or claim, without reference to rules of conflicts of law. The
arbitration proceedings shall be governed by the Rules.
(d) Unless otherwise provided for by law, the Company and Employee
shall each pay half of the costs and expenses of such arbitration.
EXHIBIT 10.16
(e) The arbitrator shall be selected as follows: in the event the
Company and Employee agree on one arbitrator, the arbitration shall be conducted
by such arbitrator. In the event the Company and Employee do not do agree, the
Company and Employee shall each select one independent, qualified arbitrator and
the two arbitrators so selected shall select the third arbitrator. The Company
reserves the right to object to any individual arbitrator who shall be employed
by or affiliated with a competing organization.
(f) At the request of either party, arbitration proceedings will be
conducted in the utmost secrecy; in such case all documents, testimony and
records shall be received, heard and maintained by the arbitrators in secrecy
under seal, available for the inspection only of the Company or Employee and
their respective attorneys and their respective experts who shall agree in
advance and in writing to receive all such information confidentially and to
maintain such information in secrecy until such information shall become
generally known.
(g) The decree or judgment of an award rendered by the arbitrators
maybe entered in any court having jurisdiction thereof.
(h) Reasonable notice of the time and place of arbitration shall be
given to all persons, other than the parties, as shall be required by law, in
which case such persons or those authorized representatives shall have the right
to attend and/or participate in all the arbitration hearings in such manner as
the law shall require.
(i) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS EMPLOYMENT AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, OR
BREACH THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE
CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL AS TO THESE ISSUES
ONLY.
13. Miscellaneous Provisions.
(a) No Duty to Mitigate. Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement, nor shall any such
payment be reduced by any earnings that Employee may receive from any other
source.
(b) Waiver. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by Employee and by an authorized officer of the Company
(other than Employee). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
EXHIBIT 10.16
(c) Whole Agreement. No agreements, representation or understandings
(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(e) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) No Assignment of Benefits. The rights of any person to payments
or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this Section shall be void.
(g) Employment Taxes. All payments made pursuant to this Agreement
will be subject to withholding of applicable income and employment taxes.
EXHIBIT 10.16
(h) Assignment by Company. The Company may assign its rights under
this Agreement to an affiliate, and an affiliate may assign its rights under
this agreement to another affiliate of the Company or to the Company; provided,
however, that no assignment shall be made if the net worth of the assignee is
less than the net worth of the Company at the time of the assignment. In the
event of any such assignment, the term "Company" when used in a section of this
Agreement shall mean the corporation that actually employs Employee.
(i) Amendments. This Agreement shall not be changed or modified in
whole or in part except by an instrument in writing signed by each party hereto.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(k) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(l) Restatement of Prior Agreement. The parties hereto acknowledge
that this Agreement amends and restates that certain Employment Agreement
between the Company and Employee dated as of March 1, 1997 and as amended on
February 23, 2000, June 29, 2001, October 11, 2001, April 21, 2003 and July 6,
2004.
******
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
COMPANY NOTIFY TECHNOLOGY CORPORATION
By: /s/ Xxxxx Xxxxxx
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Title: Director
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Date: October 30, 2007
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EMPLOYEE /s/ Xxxx X. XxXxxx
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Xxxx XxXxxx
Date: October 30, 2007
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